Opinion
NO. 01-16-00998-CV
06-16-2017
IN THE INTEREST M.M.M., M.L.B. AKA M B., AND Z.T.B
On Appeal from the 313th District Court Harris County, Texas
Trial Court Case No. 2016-00114J
MEMORANDUM OPINION
Following a bench trial, the trial court signed a judgment terminating the parent-child relationship between P.B ("Father") and his four-year-old son, M.M.M. The trial court also appointed the Department of Family and Protective Services ("the Department") as M.M.M.'s sole managing conservator. In five issues, Father contends that the evidence was not legally or factually sufficient to support termination of his parental rights or to support appointment of the Department as M.M.M.'s sole managing conservator.
We affirm.
Background
In October 2015, three-year-old M.M.M., his older sibling, and his younger sibling were living with their mother ("Mother") and Father in a motel. At the time, all three children were under the age of five. Father was not married to Mother but was her boyfriend. Father was not the biological father of the oldest child but, at the time, was believed to be the father of M.M.M. and of the youngest child.
On October 11, 2015, the Department received a referral asserting "negligent supervision" by Mother of the children. The referral reported that Mother was using crack cocaine and other drugs in front of the children. The referral further alleged that Mother worked as a prostitute and left the children alone, unsupervised, while she worked. The children were reportedly seen wearing the same clothes for several days and begging for food.
At the time of the referral, Mother admitted to using cocaine and tested positive for the drug. Although he was not tested at that time, Father also admitted to using cocaine.
The Department discovered that Mother had a history with CPS, dating back to 2007. The history involved the removal of three other children from Mother based on allegations of abuse and neglect. With respect to those children, Mother had eventually signed a power of attorney in 2011, allowing them to live with their Godparent.
Based on the circumstances, the Department believed that permitting the children to remain with Mother would be contrary to their welfare, and the children were removed from Mother's and Father's care. Initially, M.M.M. and his younger sibling were placed with their paternal grandmother. The older sibling was placed with her maternal grandmother.
At a meeting with the family on January 7, 2016, Mother admitted to the Department that she had used crack cocaine the previous day. Father stated that he and Mother had used cocaine from Christmas Day until New Year's Day. Father also stated at the meeting that all he and Mother did was sleep together and do drugs.
During the meeting, the Department also learned that the maternal grandmother had a CPS history. In addition, the Department learned that the paternal grandmother had a criminal history and had allowed Father to have unsupervised access to M.M.M. Based on the information, the Department determined that the grandparents were no longer suitable placements for the three children.
The next day, the Department filed suit, seeking temporary managing conservatorship and requesting emergency orders. In its petition, the Department also sought to terminate Mother's and Father's parental rights and to obtain sole managing conservatorship if family reunification could not be achieved. That same day, the trial court signed an emergency order for the protection of the children.
Following a full adversary hearing, at which Father appeared with appointed counsel, the trial court signed a temporary order on January 21, 2016, appointing the Department as the children's temporary managing conservator. That same day, Father provided a hair sample for drug testing. The test results were positive for amphetamines, methamphetamine, cocaine, and marijuana. Also in January 2016, Father entered an inpatient drug-treatment program at Restoration Houston Ministry.
The trial court ordered paternity testing for the children. At the time, Father believed that he was the father of M.M.M. and of M.M.M.'s younger sibling; however, the paternity testing revealed that, while he was M.M.M.'s biological father, he was not the younger sibling's father.
The trial court conducted a status hearing on March 8, 2016, attended by Father's counsel. In conjunction with the hearing, the trial court signed a status-hearing order. The order approved and incorporated by reference the Department's family service plan for Father, making the service plan an order of the trial court.
The trial court also approved a family service plan for Mother. Because Mother did not appeal, we focus on the events in the trial court that are pertinent to Father's appeal.
The court-ordered service plan, signed by the Department's caseworker on March 7, 2016, set out several tasks and services that Father was required to complete before reunification with M.M.M. could occur. The service plan required Father to complete the following tasks and services: (1) continue participating in, and successfully complete the inpatient substance abuse treatment at Restoration Houston Ministry; (2) complete a drug/alcohol assessment to identify specific types of drug treatment services and determine the intensity of treatment services needed; (3) refrain from using illegal substances and submit to random drug screenings to demonstrate sobriety; (4) attend and participate in all court hearings, permanency conferences, and scheduled visitations; (5) maintain legal employment throughout the duration of the case; (6) maintain stable housing for more than six months; (7) participate in a psychosocial evaluation and follow all recommendations resulting from the evaluation; and (8) successfully complete parenting classes.
In July 2016, Father participated in a psychosocial assessment at the Children's Crisis Care Center ("4Cs"). The 4Cs evaluator, who conducted the psychosocial evaluation, prepared a written assessment. The 4Cs evaluator noted that Father was 24 years old and resided at Restoration Houston Ministry. Father told the evaluator that he ended his relationship with Mother in December 2015. He stated that, since ending the relationship, he has been "clean and sober" and no longer desires to use drugs.
With regard to his drug history, Father stated that he began using marijuana when he was 16 years old. Father reported that "he smoked a gram of Marijuana daily. [Father] reports he can go a few months without using Marijuana but after a few months he would make a decision to buy a gram of Marijuana, and then he would relapse on Marijuana. [Father] could not identify a trigger of the relapse." Father also acknowledged having taken Xanax and having experimented with crystal methamphetamines.
Father told the evaluator that he first used cocaine when he was 21 years old. He said that he and Mother would use cocaine "together once a week and they would spend $50.00 each time they used." The evaluator wrote that Father "acknowledges that he and [Mother] used illegal drugs in the hotel room with the children present." However, Father also claimed that M.M.M. and the younger sibling had been staying with his family and did not live at the motel; he claimed only the older sibling had been living at the motel. The evaluator stated that Father "minimizes the effects of his substance abuse in front of the children and he minimizes the impact of his substance abuse on their safety and welfare." Father "blames [Mother] for DFPS involvement and denies his roles in his current DFPS case." The evaluator stated that "[Father] reiterated several times during the assessment that DFPS overreached when they removed [M.M.M.] from his care," asserting that he is "not neglectful" or a danger to M.M.M.
Father also reported to the evaluator that for "the last two years he has struggled with homelessness." Father said that "he was evicted from his apartment, for non-payment of rent, and since that eviction he has struggled with securing permanent housing." He reported that he, Mother, and the children "stayed in a vacant apartment, without furniture, for two months." The family also lived in other temporary housing, including the motel before the children were removed by the Department. Father claimed, however that the children were usually cared for by his family "during their housing transitions."
Father further reported that, despite the housing issues, he had maintained employment over the years. He had worked as a manager at a fast food restaurant from 2012 until 2015 and then had worked at another restaurant as a porter until January 2016 when he went into inpatient treatment at Restoration Houston Ministry.
Father also told the evaluator that he "would spend $2,000-$3,000 on drugs and not his children." At first, Father claimed that "substance abuse does not affect his family or his parenting," but then he admitted that "his substance abuse caused him to think about his children second." The evaluator observed that Father "struggles with insight on his addiction, triggers of his addiction, and the impact of the cycle [of] addiction on families and children."
At the end of the assessment, the evaluator gave the following summary:
[Father] acknowledges a history of substance abuse. [Father] acknowledges using drugs in [the oldest child's] presence. [Father] acknowledges the need to change and he is motivated to complete treatment recommendations. [Father] has not identified his triggers of substance abuse and has not worked to complete a twelve step recovery program. [Father] reports he does not understand the cycle of addiction and has not identified a relapse prevention plan. [Father] does not understand the long term effects of addiction on children. [Father] struggles to understand how his substance abuse effects his decision making process. [Father] reports his family has a history of substance abuse and struggles maintaining sobriety.
With respect to past criminal conduct, the evaluator noted that Father had "six juvenile charges including two Possession of Marijuana charges and one Felony Possession of Marijuana charge." Father was also arrested for assaulting Mother in 2015. Father claimed that he had not assaulted Mother but that she had fabricated the charge after the two had argued.
Based on the assessment, the 4Cs evaluator recommended that Father complete a "Drug and Alcohol Assessment and Outpatient Substance Abuse Treatment to deal with his abuse of Crack/Cocaine and Marijuana," including "attendance at AA/NA/CA meetings, obtaining a sponsor, and working the steps towards recovery." The evaluator also recommended that Father complete parenting classes and a "Batterer's Intervention Program" for domestic abuse.
In September 2016, Father completed his nine-month inpatient treatment at Restoration Houston Ministry as required by his court-ordered family service plan. While in treatment there, Father's drug tests were all negative. However, the month after his release, in October 2016, Father tested positive for marijuana.
Because he was in inpatient treatment, Father had not been permitted to work while at Restoration Houston Ministry. However, once he completed the program, Father obtained a full-time job at a pizza restaurant and a part-time job at another restaurant. In November 2016, Father signed a lease for a two-bedroom apartment. Father provided a copy of the lease to the Department's caseworker.
The case was tried to the bench on November 30, 2016. At trial, the Department sought to terminate the parent-child relationship between Father and M.M.M. Among the documentary evidence offered by the Department was Father's family service plan and the 4Cs assessment. In conjunction with the documentary evidence, the Department offered the testimony of its two caseworkers who had managed the case.
Mother's parental rights were also terminated. At trial, she signed an affidavit voluntarily relinquishing her parental rights to her three children, including M.M.M.
The first caseworker, E. Joseph, testified that she had been assigned to the case from October 2015, when the children were removed from the parents' care until January 2016 when the Department became the children's temporary conservator. Joseph testified regarding the circumstances surrounding the children's removal from the parents' care in October 2015 and their initial placement with the grandmothers. Joseph testified that the parents had admitted to illegal drug use while living at the motel. She stated that, at the January 2016 meeting with the family, she learned that Mother and Father had recently been using drugs at the motel during the week between Christmas Day and New Year's Day.
Caseworker A. Chamblee, who was assigned as the caseworker in January 2016, also testified. Chamblee explained that, at the beginning of the case, Father told her that he was in Restoration Houston Ministry. She had not been familiar with the facility but said that she relied on Father, who indicated that "it was a rehab facility." She indicated that she was willing to work with him "in the beginning of the case and support him in his progress at this facility." That was why she "incorporated [Restoration Houston Ministry] into the family plan."
Chamblee testified that, after it became part of the service plan, she contacted Restoration Houston Ministry but was not successful in reaching them. By researching on the Internet, Chamblee determined that Restoration Houston Ministry had "no individual counseling, group counseling, [or] drug testing[.]" She said that she requested "some kind of accreditation showing that they were an actual substance abuse facility and I received none of that." She called Restoration Houston Ministry's phone number but no one ever responded. The trial court asked Chamblee if she had ever driven to Restoration Houston Ministry, and she stated that she had not. On cross-examination, she acknowledged that she "should have gone by [Restoration Houston Ministry], yes."
Chamblee testified that, when she realized that Restoration Houston Ministry was not an accredited substance abuse facility, she referred Father to "BES Group" in April 2016. She stated that, at hearings in June and in October, she told Father that Restoration Houston Ministry's program "would not be acceptable" to satisfy the Department's requirements for a drug rehabilitation facility. Chamblee testified that she also provided him with a list of providers from whom he could receive drug treatment. However, the family service plan was never amended by the Department to remove the requirement that Father complete Restoration Houston Ministry's inpatient program.
Chamblee testified that Father did not complete his drug and alcohol assessment as required by the service plan. And he did not complete the drug-related services, such as attending "AA/NA/CA," recommended by the evaluator in the 4Cs psychosocial assessment also required by the service plan.
On cross-examination, Chamblee acknowledged that, when the service plan was signed and approved by the trial court, she knew that Restoration Houston Ministry's program was nine-months long. And she acknowledged that Father had completed the Restoration Houston Ministry's inpatient program in September.
In addition, Chamblee testified that she had arranged for four or five drug tests for Father while he was at Restoration Houston Ministry, and all of the drug tests were negative. However, she stated that the Father's drug test in October, after he had been released from Restoration Houston Ministry, had been positive for marijuana. She indicated that this concerned her. The Department asked Chamblee whether "a few months of sobriety from cocaine provide confidence given a long past of substance abuse," and she responded that it did not. Chamblee also indicated that it was a concern "that despite a few clean drug tests[,] [Father] has not received any formal treatment for his substance abuse."
Chamblee also testified about M.M.M. She stated that he was placed in foster care with his two siblings. She said that the three siblings "are very bonded to each other," and it would be "in the best interest" for them to stay together.
Chamblee testified that the agency had no suitable relatives that were willing to adopt M.M.M. and his two siblings. She stated that the Department had "done a broadcast for unrelated adoption."
Chamblee testified that none of the three children have special needs and are developmentally on target. She said that M.M.M. and his younger sibling are receiving speech therapy and have made progress.
The Department also offered the testimony of L. Tyler, the volunteer advocate for the three children. She stated that she had visited the children in their foster placement and that the children were "doing wonderful." Tyler said the children are "very bonded" and that M.M.M. had made "the biggest turn around." She stated that M.M.M. "was violent when they first came in there and he's not anymore." She stated that he "is happy." Tyler agreed with the Department's goal of unrelated adoption for the children.
When asked why she thought unrelated adoption would be in M.M.M.'s best interest, Tyler testified that she had heard the Department tell Father at the June and October hearings that Restoration Houston Ministry "was not [an] appropriate rehabilitation program." She stated that, despite being told that information, Father "hasn't done anything" that he was told to do. However, during cross-examination, Father's counsel showed Tyler the provision in the family service plan that required Father to complete the inpatient treatment program at Restoration Houston Ministry. Tyler was then asked whether she "commend[ed] [Father] for his attempt to work services," and she responded that she did.
The Department also called Father to testify. Father acknowledged that he had a history of drug abuse, going back a number of years. Through the years, he had used Xanax, marijuana, cocaine, and methamphetamines. He also agreed that he and Mother had a history of using cocaine about once a week. Although he did not deny that he and Mother had used drugs at the motel, Father disputed the evaluator's statement in the 4Cs assessment, indicating that Father had told the evaluator that he had used drugs in front of M.M.M.'s oldest sibling.
Father acknowledged that M.M.M. came into the Department's care because he was using cocaine. However, when asked whether he had a drug addiction, Father responded, "I don't feel I have an addiction at all." He indicated that he had been "a casual user of cocaine," agreeing that, in the past, he had smoked crack cocaine about once a week.
Father testified that he had not used drugs since January. He said that he and Mother had not been a couple since the end of 2015. He was surprised to hear that his drug test from the previous month was positive for marijuana. Father explained the positive test by stating that he had been with his brother who smoked marijuana.
Father also testified that he received drug and alcohol treatment at Restoration Houston Ministry. He said the treatment was done in "phases" rather than in a 12-step program. When it was pointed out to him that the 4Cs assessment said that he had told the evaluator that the ministry "offers spiritual guidance, but they do not offer substance abuse treatment," Father denied making that statement to the evaluator.
Father was asked whether Chamblee had informed him that Restoration Houston Ministry was not an acceptable drug treatment program. Father said that Chamblee had told him that it was not acceptable but stated that she had waited until August, only one-month before he was to finish his nine-month treatment program. Father agreed that Chamblee had then given him a list of acceptable facilities where he could receive treatment, and he acknowledged that Restoration Houston Ministry was not on that list. When asked why he continued treatment at the ministry, rather than seeking treatment with one of the providers on the list, Father responded, "On my [family] service plan, it says that that's what I need to complete." Father also said that he finished the program "[b]ecause it actually helped me." He stated that the program "built his character" and "helped develop parenting skills." He said, "It helped me also spiritually and it helped me prepare myself to be a father and to move forward into the case, the steps for the case."
Contrary to Chamblee's testimony, Father testified that he had completed a drug and alcohol assessment and had provided proof of that to his caseworker. The evidence showed that Father had completed his parenting classes. Father stated that he had started the batterers' intervention program but had not finished it. Father agreed that he had not completed all of the services recommended in his psychosocial 4Cs assessment, as required by the service plan. He stated that he had not had time to complete them.
Father acknowledged that he has struggled with homelessness in the past. He also agreed that, at one point, he, Mother, and the children were living in a vacant apartment with no furniture. However, Father testified that he now has a home: a two-bedroom apartment that he had recently leased. Father offered a copy of the lease into evidence. Father said that he had some furniture in his apartment and was in the process of getting more. He stated that he has a bank account "with a couple hundred dollars" and that he has "proof that I just paid rent [of] $780."
When asked why it had taken so long for him to obtain housing, Father testified that it was because he had completed the nine-month treatment program at Restoration Houston Ministry. He said that obtaining housing was a step-by-step process. After leaving the program, he first obtained employment, he got a car, and then he got his apartment. Father testified that he was not permitted to work while he was in Restoration Houston Ministry.
Related to his employment, Father stated that he has a GED. He said that he was currently working two jobs. One was a fulltime job at a pizza restaurant and the other was a part-time job at another restaurant. Father said that he makes $7.00 per hour plus tips at the pizza restaurant, where he works part-time. At the other restaurant, where he works full-time, he makes $6.00 per hour plus tips when he works as a busser, and $10.50 per hour when he works as a dishwasher. Father considered his jobs to be stable employment to raise a family. Father also testified that he already had daycare arranged for M.M.M. He said it was "a home day care" that his brother uses.
Father understood that M.M.M. and his two siblings are currently placed together and are bonded. He stated that he understood why the Department wanted to keep the children together. Father said that he loved all three children but was seeking custody only of his son, M.M.M. Father testified that he did not want to separate the children "but I want my biological son."
At end of trial, the court granted the Department's request for termination of the parent-child relationship between Father and M.M.M. On December 7, 2016, the trial court signed a judgment terminating Father's parental rights. In support of the termination, the trial court found that termination was in M.M.M.'s best interest. The trial court also found that Father had engaged in the predicate acts listed in Family Code Subsections 161.001(b)(1), (D), (E), and (O). Specifically, the trial court found that clear and convincing evidence showed (1) Father had knowingly placed or allowed M.M.M. to remain in conditions or surroundings that endangered his physical or emotional well-being (Subsection (D)); (2) Father had engaged in conduct or knowingly placed M.M.M. with persons who engaged in conduct that endangered their physical or emotional well-being (Subsection (E)); and (3) Father had failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of M.M.M. (Subsection (O)). The trial court also appointed the Department to be M.M.M.'s sole managing conservator.
Father now appeals the trial court's judgment. Raising five issues, Father challenges the termination of his parental rights and the appointment of the Department as M.M.M.'s sole managing conservator.
Termination of Parent-Child Relationship
Father's first three issues address the legal and factual sufficiency of the evidence to support the trial court's findings regarding the predicate acts listed in Family Code Subsections 161.001(b)(1), (D), (E), and (O). In his fourth issue, Father asserts that the evidence was not legally or factually sufficient to support the trial court's finding that termination of the parent-child relationship was in M.M.M.'s best interest.
A. Standard of Review
Termination of parental rights requires proof by clear and convincing evidence. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). This heightened standard of review is mandated not only by the Family Code but also by the Due Process Clause of the United States Constitution. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); see also Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-95 (1982) (recognizing fundamental liberty interest parent has in his or her child and concluding that state must provide parent with fundamentally fair procedures, including clear-and-convincing evidentiary standard, when seeking to terminate parental rights). The Family Code defines clear and convincing evidence as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. FAM. CODE ANN. § 101.007 (Vernon 2014); see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
Section 161.001(b) of the Family Code provides the method by which a court may involuntarily terminate the parent-child relationship. See TEX. FAM. CODE. ANN. § 161.001(b). Under this section, a court may order the termination of the parent-child relationship if the court finds, by clear and convincing evidence, that (1) one or more of the acts enumerated in section 161.001(b)(1) was committed and (2) termination is in the best interest of the child. Id. Although termination may not be based solely on the best interest of the child as determined by the trier of fact, Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987), "[o]nly one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Thus, if multiple predicate grounds are found by the trial court, we will affirm on any one ground because only one is necessary for termination of parental rights. In re G.A.A., No. 01-12-01052-CV, 2013 WL 1790230, at *7 (Tex. App.—Houston [1st Dist.] Apr. 25, 2013, no pet.) (mem. op.). Here, the Department was required to establish, by clear and convincing evidence, that Father's actions satisfied one of the predicate grounds listed in Family Code section 161.001(b)(1) and that termination was in the children's best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)-(2).
When determining legal sufficiency, we review all the evidence in the light most favorable to the trial court's finding "to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d at 266. To give appropriate deference to the fact finder's conclusions, we must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id. We disregard all evidence that a reasonable fact finder could have disbelieved or found to have been not credible. Id. This does not mean that we must disregard all evidence that does not support the finding. Id. The disregard of undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. Therefore, in conducting a legal-sufficiency review in a parental-termination case, we must consider all of the evidence, not only that which favors the verdict. See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).
In determining a factual-sufficiency point, the higher burden of proof in termination cases also alters the appellate standard of review. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). "[A] finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance." Id. at 25. In considering whether evidence rises to the level of being clear and convincing, we must consider whether the evidence is sufficient to reasonably form in the mind of the fact finder a firm belief or conviction as to the truth of the allegation sought to be established. Id. We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id.
We give due deference to the fact finder's findings, and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109.
B. Predicate Finding under Subsection 161.001(b)(1)(E)
The termination of Father's parental rights to M.M.M. was predicated on, among others, a violation of Family Code Subsection 161.001(b)(1)(E). In his second issue, Father asserts that the evidence was legally and factually insufficient to support that predicate finding.
1. Applicable Legal Principles
Subsection (E) of section 161.001(1)(b) permits termination when clear and convincing evidence shows that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Within the context of Subsection (E), endangerment encompasses "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment." Boyd, 727 S.W.2d at 533. Instead, "endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. Id.; see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
It is not necessary to establish that a parent intended to endanger a child in order to support termination of the parent-child relationship under subsection (E). See M.C., 917 S.W.2d at 270. However, termination under subsection 161.001(b)(1)(E) requires "more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required." In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). The specific danger to the child's well-being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied). "As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." R.W., 129 S.W.3d at 739.
The statute does not require that conduct be directed at a child or cause actual harm; rather, it is sufficient if the parent's course of conduct endangers the well-being of the child. See Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Furthermore, the conduct does not have to occur in the presence of the child. Id. The conduct may occur before the child's birth and both before and after the child has been removed by the Department. Id. A parent's past endangering conduct may create an inference that the parent's past conduct may recur and further jeopardize a child's present or future physical or emotional well-being. See In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).
2. Analysis
Here, the evidence showed that Father has a history of narcotics use before and after M.M.M.'s birth and before and after M.M.M. was removed from Father's care. Evidence was presented that Father started using marijuana when he was 16 years old. Father reported to the 4Cs evaluator that "he smoked a gram of Marijuana daily. [Father] reports he can go a few months without using Marijuana but after a few months he would make a decision to buy a gram of Marijuana, and then he would relapse on Marijuana." The evaluator wrote that "[Father] could not identify a trigger of the relapse." Father also acknowledged, during the 4Cs assessment and during trial, he had a history of taking Xanax, and he admitted to experimenting with crystal methamphetamines.
The evidence showed that Father and Mother were using crack cocaine at the motel where the couple was living when the children were removed from their care in October 2015 and placed in the care of their respective grandmothers. Father told the evaluator that the only child that lived at the motel was M.M.M.'s older sibling. He claimed that M.M.M. and the younger sibling lived with his family but would sometimes come to the motel. In the 4Cs assessment, the evaluator stated that Father "acknowledges that he and [Mother] used illegal drugs in the hotel room with the children present." Father also told the 4Cs evaluator that he "would spend $2,000-$3,000 on drugs and not his children." The evaluator wrote that "[Father] acknowledges his substance abuse caused him to think about his children second."
The evidence further showed that, after the children's placement with their grandmothers in 2015, Mother and Father continued to use cocaine together at the motel during the 2015 Christmas holidays. And there was evidence of Father's continued drug use after the Department was appointed temporary managing conservator on January 7, 2016. Father's January 21, 2016 drug test was positive for amphetamines, methamphetamine, cocaine, and marijuana.
Father completed a nine-month inpatient treatment program at Restoration Houston Ministry in September 2016. Although he had negative drug tests while he was in the program, Father tested positive for marijuana in October 2016, a month after he completed the program.
The Supreme Court of Texas has recognized that "a parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct." In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re A.F., No. 13-09-00676-CV, 2010 WL 3180282, at *5 (Tex. App.—Corpus Christi Aug. 12, 2010, no pet.) (mem. op.) (holding that mother's chronic illegal drug use supported Subsection (E) endangerment finding); In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.) ("Evidence of illegal drug use or alcohol abuse by a parent is often cited as conduct which will support an affirmative finding that the parent has engaged in a course of conduct which has the effect of endangering the child."); In re T.D.L., No. 02-05-00250-CV, 2006 WL 302126, at *7-8 (Tex. App.—Fort Worth, Feb. 9, 2006, no pet.) (mem. op.) (considering mother's continuous abuse of prescription drugs in analyzing trial court's Subsection (E) finding); In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) ("As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child. Drug use and its effect on a parent's life and his ability to parent may establish an endangering course of conduct."). This Court has recognized that illegal drug use may support termination under subsection 161.001(b)(1)(E) because "it exposes the child to the possibility that the parent may be impaired or imprisoned." Walker, 312 S.W.3d at 617. Courts have also held that a parent's decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, may support a finding that the parent engaged in conduct that endangered the child's physical or emotional well-being. See, e.g., In re J.M., No. 12-11-00319-CV, 2013 WL 5657422, at *5 (Tex. App.—Tyler Oct. 16, 2013, pet. denied) (mem. op.); In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied); In re S.K.A., 236 S.W.3d 875, 900-01 (Tex. App.—Texarkana 2007), pet. denied, 260 S.W.3d 463 (Tex. 2008); In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.).
To challenge the sufficiency of the evidence, Father makes a number of assertions in his brief, which he claims undermines the Subsection (E) endangerment finding. Father first asserts that, when M.M.M. was removed from his care in October 2015, the Department had determined that M.M.M. was not in "imminent danger" because it did not seek conservatorship of M.M.M. at that time; rather, M.M.M. was placed in "a voluntary safety placement" with his paternal grandmother. However, Father points to no statement in the record by the Department to that effect nor to any legal authority to support that assertion. In addition, the record, as evidenced by the positive drug screens, shows that Father continued to use illegal narcotics after M.M.M. was voluntarily placed with his grandmother.
Father also points out that Caseworker Joseph was inconsistent in her testimony regarding whether Mother and Father had admitted to using drugs together in the motel during the 2015 Christmas holidays. In her affidavit supporting emergency removal of the children, which was incorporated into the 4Cs assessment, Joseph stated that Mother and Father had both admitted to using drugs during the holidays. However, Father points out that, at trial, Joseph testified that, during the January 2016 family meeting, the couple had argued about whether they had used drugs during the holidays with Father denying that he had used drugs then. However, "[i]t is well established that, in a bench trial, the judge as the trier of fact weighs the evidence, assesses the credibility of witnesses and resolves conflicts and inconsistencies." In re D.D.D.K., No. 07-09-0101-CV, 2009 WL 4348760, at *6 (Tex. App.—Amarillo Dec. 1, 2009, no pet.) (mem. op.). Thus, it was for the trial court to resolve any inconsistencies in Joseph's testimony. And, in any event, the trial court could have inferred that Father continued to use drugs after M.M.M. was removed from his care given that Father's January 2016 drug test was positive for multiple controlled substances.
Consistent with his testimony at trial, Father asserts that there was no evidence that he used drugs in M.M.M.'s presence either before or after M.M.M.'s removal. This is despite the statement in the 4Cs assessment in which the evaluator indicated that Father gave conflicting statements about his drug use in front of the children at the motel. The evaluator reported that Father admitted using drugs in front of the children, he specifically admitted using drugs in front of M.M.M.'s oldest sibling, but then Father also denied using drugs in front of M.M.M.
Father also avers that there was no evidence that his "actions or omissions did pose a physical or emotional danger" to M.M.M. Contrary to Father's position, a parent's actions or failures to act need not have been specifically directed at the child or have actually injured the child or even constituted a concrete threat of injury to the child to support an endangerment finding. See Boyd, 727 S.W.2d at 533. And Father's drug use need not have been conducted in M.M.M.'s presence for it to have had a negative effect on his parenting abilities. See In re H.D., No. 01-12-00007-CV, 2013 WL 1928799, at *11 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.) (affirming judgment terminating mother's parental rights under Subsection (E) based on evidence of mother's drug use, even though mother claimed drugs not used in children's presence). Rather, "the statute is satisfied by showing that parental conduct simply jeopardized the child's physical or emotional well-being." In re M.J.M.L., 31 S.W.3d 347, 351 (Tex. App.—San Antonio 2000, pet. denied); see also In re C.S.L.E.H., No. 02-10-00475-CV, 2011 WL 3795226, at *5-*6 (Tex. App.—Fort Worth Aug. 25, 2011, no pet.) (mem. op.) (affirming termination under Subsection (E) because "[f]ather's heroin and cocaine use after [the Department] removed the children is sufficient to constitute endangerment," even though no showing was made that children were neglected or abused because of drug use); Vasquez v. Tex. Dep't of Protective & Regulatory Servs., 190 S.W.3d 189, 195-96 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (upholding termination of parental rights despite there being no direct evidence of parent's continued drug use actually injuring child); In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet. denied) (recognizing that substance abuse "lends itself to an unstable home environment").
In addition, Father contends that he took "definitive steps to end his drug use through the services provided him, and that drug use has not recurred." However, this statement is not supported by the record. Father had a positive drug screen in October 2016 following his release from Restoration Houston Ministry.
In sum, the evidence supports the trial court's finding that Father's conduct endangered M.M.M.'s physical or emotional well-being. Given the evidence, the trial court in this case could have reasonably inferred that Father has pursued a course of conduct, through his chronic drug use, that exposed M.M.M. to injury and placed him in jeopardy, i.e., endangered M.M.M.'s physical and emotional well-being, even though no actual injury to M.M.M. was shown.
The evidence also supported a conclusion of future danger to M.M.M. Father continued to use drugs, despite having received treatment and being on the verge of having his parental rights terminated. The 4Cs assessment indicated that Father needs substance-abuse treatment because he "struggles with insight on his addiction, triggers of his addiction, and the impact of the cycle on addiction on families and children." The evidence indicated that the treatment he received at Restoration Houston Ministry, although required by the service plan to complete it, may not have been adequate to address his drug-abuse issues. From this, the trial court could have further reasoned that Father will continue to pursue his past course of conduct if M.M.M. were placed in his care and that M.M.M.'s physical and emotional well-being would be at risk, given Father's past conduct. See In re A.H., No. 02-06-064-CV, 2006 WL 2773701, at *3 (Tex. App.—Fort Worth Sept. 28, 2006, no pet.) (mem. op.) (noting that stability and permanence are paramount in the upbringing of children, that an endangering environment can be created by a parent's involvement with an illegal drug, and that a factfinder may infer from past conduct endangering the children's well-being that similar conduct will recur if the children are returned to the parent).
We conclude that the evidence, viewed in the light most favorable to a finding of endangerment, was sufficiently clear and convincing that a reasonable factfinder could have formed a firm belief or conviction that Father engaged in conduct that endangered M.M.M.'s physical or emotional well-being. We further conclude that, viewed in light of the entire record, any disputed evidence could have been reconciled in favor of the trial court's endangerment determination or was not so significant that the trial court could not reasonably have formed a firm belief or conviction that Father engaged in conduct that endangered M.M.M.'s physical or emotional well-being. Accordingly, we hold that the evidence was legally and factually sufficient to support the Subsection (E) endangerment finding with respect to the termination of Father's parental rights to M.M.M. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
We overrule Father's second issue.
Because there is sufficient evidence of Subsection (E) endangerment, we need not address Father's first or third issues, challenging the sufficiency of the evidence to support the trial court's findings that Father committed the predicate acts listed in Subsections 161.001(b)(1)(D) and (O). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) ("Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest.").
B. Best-Interest Finding
In his fourth issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of the parent-child relationship was in M.M.M.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2).
1. Legal Principles
A strong presumption exists that a child's best interests are served by maintaining the parent-child relationship. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and permanent placement of the child in a safe environment is also presumed to be in the child's best interest. TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016). The Department has the burden to prove by clear and convincing evidence that termination is in a child's best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2).
In Holley v. Adams, the Supreme Court of Texas identified factors that courts may consider when determining the best interest of the child, including: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by the individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. 544 S.W.2d 367, 371-72 (Tex. 1976). This is not an exhaustive list, and a court need not have evidence on every element listed in order to make a valid finding as to the child's best interest. In re C.H., 89 S.W.3d at 27. While no one factor is controlling, analysis of a single factor may be adequate in a particular factual situation to support a finding that termination is in the best interest of the child. In re A.P., 184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.).
In addition, the Texas Family Code sets out factors to be considered in evaluating a parent's willingness and ability to provide the child with a safe environment. See TEX. FAM. CODE ANN. § 263.307(b); see also In re R.R., 209 S.W.3d at 116 (citing Family Code Section 263.307 and Holley as containing factors to consider "when determining whether termination of parental rights is in the best interest of the child"). The evidence supporting the statutory predicate grounds for termination may also be used to support a finding that the best interest of the child warrants termination of the parent-child relationship. C.H., 89 S.W.3d at 28; In re H.D., No. 01-12-00007-CV, 2013 WL 1928799, at *13 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.). Furthermore, in conducting the best-interest analysis, a court may consider not only direct evidence but also may consider circumstantial evidence, subjective factors, and the totality of the evidence. In re H.D., 2013 WL 1928799, at *13.
2. Analysis
Multiple factors support the trial court's determination that termination of Father's parental rights was in M.M.M.'s best interest. Father's long history of drug abuse and its attendant unstable lifestyle, plus Father's continuing narcotics use while this case was pending, not only support the trial court's endangerment finding, it also supports the best-interest determination. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (explaining that parent's history of drug use is relevant to trial court's best-interest finding); see In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.) (concluding that a parent's continuous drug use, unstable lifestyle, and criminal record supported best-interest determination); Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86-87 (Tex. App.—Dallas 1995, no writ) (allowing factfinder to give significant weight to parent's drug-related conduct in making a best-interest finding); see also TEX. FAM. CODE ANN. § 263.307(b)(8) (providing that, in determining best interest, courts may consider history of substance abuse by child's family or others who have access to the child's home). As discussed, the evidence showed that Father used illegal drugs before M.M.M.'s birth. Father began using marijuana when he was 16 years old. Father also had juvenile history for drug possession charges. In addition, Father admitted to a history of taking Xanax and experimenting with crystal methamphetamines.
The evidence showed that Father and Mother used crack cocaine together at the motel where they were living at the time the children were removed from their care. Father admitted to spending $2,000 to $3,000 on drugs, acknowledging that this caused him to put the needs of the children second. Father stated that he and Mother smoked cocaine approximately once a week. Evidence was presented indicating that Father had used drugs in front of the children at the motel, although Father denied using drugs in front of M.M.M.
Father claimed that M.M.M. did not live at the motel but had been living with his mother and sister. The evidence also showed that Father's mother had a criminal history for drug dealing and had spent part of Father's childhood in prison for that offense.
Evidence was also presented that Father continued to use cocaine with Mother at the motel after the children were removed from their care. After the Department was appointed temporary conservator, evidence indicated that Father continued to use drugs. On January 21, 2016, Father tested positive for amphetamines, methamphetamine, cocaine, and marijuana. Father did not test positive for drug use during the nine months he was in Restoration Houston Ministry; however, Father tested positive for marijuana in October 2016, the month before trial.
A factfinder need not ignore a long history of drug dependence and destructive behavior when the evidence established that past substance abuse was more than just "remote and isolated incidents." In re R.W., 129 S.W.3d 732, 741 (Tex. App.—Fort Worth 2004, pet. denied). A parent's drug use is a condition indicative of instability in the home environment because it exposes a child to the possibility that the parent may be impaired or imprisoned. See In re A.M., 495 S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); P.W. v. Dep't of Family & Protective Servs., 403 S.W.3d 471, 479 (Tex. App.—Houston [1st Dist.] 2013, pet. dism'd w.o.j.). Evidence of Father's past pattern of drug use is relevant not only to the stability of the home he can provide but also to the emotional and physical needs of M.M.M. now and in the future and to the emotional and physical danger in which M.M.M. could be placed now and in the future. See Holley, 544 S.W.2d at 371-72 (factors two, three, and seven); see also In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (finding pattern of illegal drug use suggested mother was not willing and able to provide child with safe environment—a primary consideration in determining child's best interest).
Significantly, evidence was presented showing that the trial court could have inferred that Father's drug abuse would likely continue in the future. When determining best interest, a trial court may measure a parent's future conduct by his past conduct. In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.). Father tested positive for marijuana only one month before the trial to terminate his parental rights in this case. Father testified that he believed the test was positive because he had been with his brother who was smoking marijuana. See Holley, 544 S.W.2d at 371-72 (factor nine: any excuse for the acts or omissions of the parent). However, the trial court, as the factfinder, could have chosen to disbelieve Father's excuse for the positive drug test and believed that Father had recently used marijuana. See In re D.D.D.K., 2009 WL 4348760, at *6.
The evidence, specifically the 4Cs assessment, showed that Father lacked "insight on his addiction, triggers of his addiction, and the impact of the cycle on addiction on families and children." Father told the 4Cs evaluator "he smoked a gram of Marijuana daily" and could "go a few months without using Marijuana but after a few months he would make a decision to buy a gram of Marijuana, and then he would relapse on Marijuana." Father stated that he "could not identify a trigger of the relapse."
Father testified that he believed that his nine-month inpatient drug-treatment program at Restoration Houston Ministry helped him. The Department, however, took the position that the program was not adequate despite it being required in the court-ordered service plan. The evidence further showed that the 4Cs evaluator recommended that Father attend a narcotics-anonymous-based program to address his drug addiction, noting that Father had indicated that Restoration Houston Ministry was a spiritual program, not a substance-abuse program.
Chamblee indicated that the Department had been concerned that Father had not attended a 12-step program to address his drug use. Chamblee testified that, before and after Father was released from his inpatient treatment, she provided Father with a list of outpatient substance-abuse providers that were approved by the Department; however, Father did not attend outpatient treatment or narcotics anonymous as recommended by the evaluator. See Holley, 544 S.W.2d at 371-72 (factor five: the programs available to assist these individuals to promote the best interest of the child). Given the evidence, particularly Father's last positive drug test, the trial court could have inferred that Father was at great risk to continue abusing drugs in the future because he was not fully committed to overcoming his substance abuse, and he had not gained insight into what triggered it. See In re W.Q., No. 06-16-00086-CV, 2017 WL 835559, at *5 (Tex. App.—Texarkana Mar. 3, 2017, no pet.) (mem. op.) (concluding trial court could infer parent would relapse with drug use despite recent efforts at rehabilitation based on past patterns of drug use); see also TEX. FAM. CODE ANN. § 263.307(b)(10), (11) (stating courts may consider willingness and ability of the child's family to seek out, accept, and complete counseling services and willingness and ability of child's family to effect positive environmental and personal changes within reasonable period of time).
Father's inability to refrain from using drugs during the pendency of the case suggests an inability to perceive the danger that his drug use poses to M.M.M. See In re G.A., No. 01-11-00565-CV, 2012 WL 1068630, at *6 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem. op.) (concluding that father's concealment of drug use and continued relationship with mother who abused drugs demonstrated father's inability to perceive danger that parental drug use posed to child). Such evidence is also indicative of Father's poor judgment and demonstrates an inability to adequately care for a young child. See In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.) (noting parental drug abuse is reflective of poor judgment); see also Holley, 544 S.W.2d at 371-72 (factor four: parental abilities of individual seeking custody).
The trial court could have also inferred that Father's drug abuse had led to housing instability, which, along with Father's drug use, was likely to reoccur. Father admitted to suffering from chronic homelessness during the past two years. During that time, the family had lived in a number of places, including a vacant apartment without furniture. For the last three months before the Department's intervention, the family had been living in the motel where Father and Mother were using cocaine.
Father did offer proof that he had obtained housing and employment after his release from Restoration Houston Ministry. Father provided a lease for a two-bedroom apartment that he testified he had rented 10 days before trial. While this evidence indicates that Father has a willingness and desire to provide a safe environment for M.M.M., other evidence, particularly evidence of his drug usage and past housing instability, shows that Father is at risk for relapsing into his past pattern of drug abuse and homelessness. In short, Father has made progress, but it has been short-lived, particularly when compared to Father's lengthy history of chronic drug abuse and housing instability. See In re C.A.J., 122 S.W.3d at 894 (recognizing that, without stability, a parent cannot "provide for the child's emotional and physical needs")
We also note that M.M.M. was four years old at the time of trial. As such, the Holley factor regarding the desires of the child is neutral in this case. Holley, 544 S.W.2d at 371-72 (factor one). However, M.M.M.'s young age does weigh in favor of the best-interest determination. See TEX. FAM. CODE ANN. § 263.307(b)(1) (providing that court may consider child's age and physical and mental vulnerabilities in best-interest determination).
Other evidence related to M.M.M.'s emotional needs was also presented. When he came into the Department's custody, M.M.M. had speech and behavioral issues. The evidence showed that those issues had been addressed and resolved after M.M.M. came into the Department's care. The evidence also showed that M.M.M. was happy and doing well in foster care. See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (stating that stability and permanence are important to upbringing of a child and affirming finding that termination was in child's best interest when child was thriving in foster care). The evidence further showed that M.M.M. and his siblings were very bonded.
The Department's goal was to keep the siblings together and have them adopted together by a non-relative. See Holley, 544 S.W.2d at 371-72 (factor six: plans for child by individuals or by agency seeking custody). The child-volunteer-advocate, who visited the children in their foster home, agreed with this goal.
Father is correct that evidence was presented weighing against the best-interest finding. Father expressed that he loves M.M.M., and he points out that he recently obtained a home and employment to support M.M.M. See id.
Father also points out that, although it expresses a goal of keeping the children together, the Department does not have an adoptive placement for three siblings. Pertinent to this point, the Supreme Court of Texas has stated that "[e]vidence about placement plans and adoption are, of course, relevant to best interest," however, the court made clear that "the lack of evidence about definitive plans for permanent placement and adoption cannot be the dispositive factor; otherwise, determinations regarding best interest would regularly be subject to reversal on the sole ground that an adoptive family has yet to be located." C.H., 89 S.W.3d at 28. "Instead, the inquiry is whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that termination of the parent's rights would be in the child's best interest—even if the agency is unable to identify with precision the child's future home environment." Id.
In addition, it is undisputed that Father completed a number of the services in his service plan, most notably the nine-month inpatient stay at Restoration Houston Ministry. Father points out that, while in that program, all of his drug screens were negative. However, the trial court could have inferred that, while he remained drug-free during his inpatient stay, Father is at risk of falling back into his past pattern of substance abuse once he is no longer in a structured, monitored environment. Such inference is supported by Father's positive drug screen after he was released from inpatient care.
Father also completed other requirements of the service plan, such as his psychosocial assessment and parenting classes. Father recognizes that he did not complete all of his services and points to his testimony in which he indicated that he did not have sufficient time to complete all of his services after his release from Restoration Houston Ministry and during which he experienced a desire to complete his services if given additional time. See Holley, 544 S.W.2d at 371-72 (factor nine: any excuse for acts or omissions of parent). Evidence also showed that Father participated in tasks and services to the extent that he could engage in those tasks and services within the confines of completing the nine-month inpatient treatment program at Restoration Houston Ministry. See id.
In sum, Father correctly points out that some evidence exists in the record weighing against the trial court's finding that termination was in M.M.M.'s best interest. However, evidence cannot be read in isolation; it must be read in the context of the entire record. See In re K.C.F., No. 01-13-01078-CV, 2014 WL 2538624, at *16 (Tex. App.-Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.). The record reveals that Father has a long history of providing an unstable environment for M.M.M., where M.M.M. was subjected to illegal drug use and unstable housing. The record does indicate that Father made some effort to overcome his substance abuse and to stabilize his life; however, any improvement made by Father was overshadowed by the evidence showing that the improvement was relatively short-lived, particularly in light of his positive drug test the month before trial. As the factfinder, the trial court, after assessing the credibility of the witnesses and weighing the evidence, could have reasonably inferred that Father would continue his pattern and practice of using illegal drugs and providing an unstable home for M.M.M., which has the potential to compromise the child's emotional and physical well-being.
After viewing all of the evidence in the light most favorable to the best-interest finding, we conclude that the evidence was sufficiently clear and convincing that a reasonable factfinder could have formed a firm belief or conviction that termination of the parent-child relationship between Father and M.M.M. was in the child's best interest. We further conclude that, viewed in light of the entire record, any disputed evidence could have been reconciled in favor of the trial court's finding that termination of the parent-child relationship between Father and M.M.M. was in M.M.M.'s best interest or was not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination was in the M.M.M.'s best interest. Therefore, after considering the relevant factors under the appropriate standards of review, we hold the evidence is legally and factually sufficient to support the trial court's finding that termination of the parent-child relationship was in M.M.M.'s best interest.
We overrule Father's fourth issue.
Conservatorship of M.M.M.
Father's fifth issue challenges the appointment of the Department as M.M.M.'s sole managing conservator. Conservatorship determinations are reviewed for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Therefore, we reverse the trial court's appointment of a managing conservator only if we determine it was arbitrary and unreasonable. Id.
Father asserts that he should have been appointed managing conservator of M.M.M. based on Section 153.131(a) of the Family Code. Section 153.131 creates a rebuttable presumption that a parent will be named a child's managing conservator unless the court finds that such appointment would not be in the child's best interest because the appointment would significantly impair the child's physical health or emotional development or finds that there is a history of family violence involving the parents. TEX. FAM. CODE ANN. § 153.131(a)-(b) (West 2014). Section 153.131 applies when the parents' parental rights have not been terminated. See In re S.N., Jr., No. 05-16-01010-CV, 2017 WL 2334241, at *5 (Tex. App.—Dallas May 30, 2017, no pet. h.) (mem. op. nunc pro tunc); see also In re J.A.J., 243 S.W.3d at 614-15. However, when the parents' rights are terminated, as here, Section 161.207 controls the appointment of a managing conservator. In that situation, the trial court appoints "a suitable, competent adult, the Department of Family and Protective Services, or a licensed child-placing agency as managing conservator of the child." TEX. FAM. CODE ANN. § 161.207(a) (West Supp. 2016).
On appeal, Father argues only that he should have been appointed M.M.M.'s managing conservator pursuant to the rebuttable presumption under Section 153.131(a). Because Section 161.207—not Section 151.131—applies here, Father has failed to show that the trial court abused its discretion by appointing the Department as M.M.M.'s sole managing conservator. See id.
We overrule Father's fifth issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Chief Justice Radack and Justices Higley and Bland.